Johnson v. Membertou First Nation

Johnson v. Membertou First Nation
Collection
Canadian Human Rights Tribunal
Date
2024-03-21
Neutral citation
2024 CHRT 16
File number(s)
HR-DP-2832-22
Decision-maker(s)
Hadjis, Athanasios
Decision type
Decision
Grounds
Colour
National or Ethnic Origin
Race
Summary:
The Complainant, Joanne Johnson, complained that the Membertou First Nation (MFN) had discriminated against her in relation to her employment on the basis of her colour, national or ethnic origin, and race.
The Complainant was hired as a general manager at the Lanes Bowling Alley (the “Lanes”), a new facility owned by the MFN, with a six-month probation. At the end of Ms. Johnson’s probation, the Chief Operating Officer conducted a review. He extended Ms. Johnson probation, and MFN eventually dismissed her before the extension expired.
The Complainant is not Indigenous and not a member of the MFN. She alleged that the MFN had a policy that established a different set of preferential rules for Indigenous persons. Ms. Johnson claimed that the fact that she is not Indigenous was a factor in how the MFN managed her employment and her dismissal.
The MFN argued that it had dismissed the Complainant while she was on probation because of her performance and insubordination. No prohibited ground of discrimination had been a factor in the MFN’s decision. The MFN contends that Ms. Johnson had difficulties mentoring, motivating and dealing with staff at the Lanes. She took a stand-offish position to her superior’s efforts to improve her performance and demonstrated defiance and insubordination.
The Tribunal was satisfied that the MFN dismissed the Complainant solely based on its perception of her performance as a general manager. The Tribunal found that the evidence did not support Ms. Johnson’s allegations that her national or ethnic origin, race or colour were factors in the MFN’s decision to dismiss her. Neither did she demonstrate that the MFN had a discriminatory employment policy that gave preference to Indigenous persons or members of the MFN.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT 16
Date:
March 21, 2024
File No. :
HR-DP-2832-22
Between:
Joanne Johnson
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Membertou First Nation
Respondent
Decision
Member:
Athanasios Hadjis
Table of Contents
I. OVERVIEW 1
II. DECISION 1
III. BACKGROUND 1
IV. THE SECTION 7 ALLEGATION 4
A. THE SECTION 7 ISSUES 4
B. THE EVIDENCE 6
(i) Positive elements in Ms. Johnson’s performance 6
(ii) The MFN’s actions and omissions regarding Ms. Johnson’s management of the Lanes that she alleges show that the MFN treated her adversely as a non-Indigenous person 9
a. The MFN’s failure to respond to Ms. Johnson’s requests 10
b. The MFN’s unwillingness to address concerns about an employee if they are Indigenous 12
c. The MFN’s failure to provide Ms. Johnson a coaching document 14
d. Post-dismissal evidence 15
e. The MFN’s preferential treatment of AB and the lead-up to Ms. Johnson’s termination 16
(iii) The MFN’s concerns with Ms. Johnson’s performance as general manager 21
C. ANALYSIS – A PRIMA FACIE CASE UNDER SECTION 7 WAS NOT PROVEN 27
(i) Ms. Johnson has protected characteristics under the CHRA 27
(ii) Ms. Johnson experienced an adverse impact 28
(iii) Ms. Johnson’s colour, national or ethnic origin, and race were not factors in the instances of adverse impact 30
a. The probationary period and the coaching document 31
b. The termination 32
V. THE SECTION 10 ALLEGATION 36
VI. CONCLUDING REMARKS 37
VII. ORDER 38
I. OVERVIEW [1] The Respondent, the Membertou First Nation (the “MFN”), dismissed the Complainant, Joanne Johnson, from her position as the general manager of its bowling alley. She alleges that the MFN had a policy that established a different set of preferential rules for Indigenous persons. Ms. Johnson claims the fact that she is not Indigenous was a factor in how the MFN managed her employment and her dismissal, resulting in a discriminatory practice based on her colour, national or ethnic origin, and race.
[2] The MFN denies Ms. Johnson’s allegations and contends that she was terminated during her probationary period because of her performance and insubordination. It maintains that the prohibited grounds of discrimination were not factors in the decision.
II. DECISION [3] For the following reasons, I find that Ms. Johnson has not established that her colour, national or ethnic origin, or race were factors in how the MFN treated her or in her dismissal or that the MFN had a discriminatory employment policy that gave preference to Indigenous persons or members of the MFN.
III. BACKGROUND [4] The MFN is a Mi’kmaq community located on Cape Breton in Nova Scotia. It operates several enterprises on its territory through its Membertou Development Corporation, including a gaming facility. In 2011, the MFN hired Ms. Johnson as a cashier in the gaming facility. She is not Indigenous and is not a member of the MFN. After about four years, Ms. Johnson was promoted to a supervisory position as lead cashier, filling in from time to time as manager.
[5] In 2018, the MFN opened a new facility, its family and entertainment centre known as the Lanes Bowling Alley (the “Lanes”), which consisted of bowling lanes, sports simulators, and a full bar and restaurant.
[6] Ms. Johnson saw a poster advertising for the Lanes’ general manager position. She applied believing she would be a good fit given her experience and education. She holds a degree in business administration from St. Francis Xavier University, and the poster listed this type of degree as a preferred qualification.
[7] Ms. Johnson was hired in July 2018, after being interviewed by a three-member panel. She signed the MFN’s letter of offer on July 19, 2018. It states that her employment is subject to a six-month probationary period, following which a review will be conducted by the Chief Operating Officer (“COO”). The clause added that she may be dismissed if she did not pass her probationary period.
[8] Ms. Johnson began working in the position on August 1, 2018. The Lanes’ construction had not been completed, but she immediately began preparations to staff the operation. Eventually a total of 68 employees were hired at the Lanes, most of whom worked part time. Ms. Johnson and the Lanes’ supervisors made recommendations to the MFN’s human resources (HR) department regarding candidates, but it was HR that had the authority to hire them.
[9] The Lanes opened to the public in November 2018. Ms. Johnson claims that, in the lead-up to the opening and in the months thereafter, she had issues with senior management and staff, which I expand upon later in this decision. Ms. Johnson was particularly concerned about the conduct of one employee, whom I need only refer to in this decision as AB (not her real initials). The MFN had appointed AB as customer relations and events supervisor at the Lanes. AB was Indigenous and a member of the MFN. She was not called to testify at the hearing.
[10] Ms. Johnson’s six-month probationary period was to end on February 3, 2019. Shortly before this date, she met with the MFN’s COO, Richard Paul. He filled out a standard MFN annual performance appraisal form for director, manager, and supervisory positions to assess Ms. Johnson’s performance to date. In several of the categories, he checked off that she needed improvement and, in others, that she met standards. Ms. Johnson’s total summary rating was 64%. The “meets standard” range is indicated on the form as being 62% to 74%.
[11] Mr. Paul’s comments on the form about her overall performance were that she had done a “good job in some areas” and that she was starting to understand the important role of managing time, people, and the operation. He added that her probationary period was being extended by three months, which he wrote was not an easy decision and was made through the “corporate executive and HR.” Mr. Paul added that he and Richard Stevens, the HR manager, would provide Ms. Johnson “a coaching document with follow-up.” He listed several recommendations for improvement.
[12] The extension of the probationary period was to end on May 3, 2019. The date passed, and Ms. Johnson still did not have any news from the MFN about her employment status. On May 8, 2019, she spoke to Mr. Paul after a general meeting and asked him “Where do we stand?” She testified that he told her, “You’re OK.” She then travelled to Toronto to visit an established bowling operation for research into improving the data integration of the Lanes point-of-sale system.
[13] While she was away, she and Mr. Paul exchanged emails regarding AB, in which Ms. Johnson expounded on her concerns about AB’s performance as an employee. The exchange continued upon her return to Cape Breton the following week. Ms. Johnson’s last email in the exchange was sent in the evening of May 23, 2019. The next day, May 24, 2019, she received an email with a letter informing her that her employment was terminated effective immediately and that, as a probationary employee, she was not entitled to notice. However, to assist her in transitioning to new employment, the MFN was providing her two weeks’ pay in lieu of notice.
[14] The letter noted that she could appeal her dismissal directly to the MFN’s Chief and Council in writing within 15 days. Ms. Johnson filed an appeal, but she testified that she never got any response from the MFN. The MFN’s witnesses were unable to explain what had happened to her appeal, but her dismissal was never rescinded.
[15] It was difficult for Ms. Johnson to find another job as a woman in her mid-50s. She testified that, in job interviews, she had to explain the gap in her career path. The community where she resides is small and everyone wondered why she was no longer employed at the MFN after all those years. It took Ms. Johnson one and a half years to finally secure another job at a seniors’ residence. She states that she was devastated emotionally as well as financially.
IV. THE SECTION 7 ALLEGATION A. THE SECTION 7 ISSUES
[16] Ms. Johnson alleges that her colour, national or ethnic origin, and race, which are prohibited grounds of discrimination under s. 3 of the Canadian Human Rights Act, R.S.C. c. H-6 (CHRA), were factors in how the MFN treated her during her employment and its decision to dismiss her. Ms. Johnson claimed in her complaint that she was discriminated against in the course of her employment within the meaning of s. 7 of the CHRA as a result of a policy or practice, within the meaning of s. 10. I will first deal with the s. 7 allegation and leave my consideration of the s. 10 allegation for later in the decision.
[17] Section 7(a) of the CHRA says that it is a discriminatory practice, directly or indirectly, to refuse to continue to employ an individual on a prohibited ground of discrimination. Section 7(b) provides that it is a discriminatory practice in the course of employment to differentiate adversely in relation to an employee based on a prohibited ground of discrimination.
[18] Ms. Johnson must prove that the alleged discriminatory practice was, on its face, discriminatory, which is more formally referred to as establishing a prima facie case of discrimination.
[19] To establish a prima facie case, Ms. Johnson must prove that it is more likely than not (i.e., on a balance of probabilities) that:
1) she has a characteristic protected under the CHRA (i.e., a prohibited ground of discrimination);
2) she experienced an adverse impact with respect to her employment; and
3) the prohibited ground of discrimination was a factor in the adverse impact
(see Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para 69).
[20] Ms. Johnson is not required to prove that the MFN intended to discriminate against her (Quebec (Commission des droits de la Personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 [Bombardier] at paras 40-41). It is the result, or the adverse impact or effect, that is significant (Ont. Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536, 1985 CanLII 18 at paras 12, 14).
[21] The protected characteristic need not be the only factor in the adverse treatment (First Nations Child and Family Caring Society of Canada v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 at para 25).
[22] To determine whether discrimination occurred, the Tribunal considers the evidence of all parties. If the complainant proves the three prima facie elements of discrimination on a balance of probabilities, then the burden shifts to the respondent to justify the discrimination. In employment cases, the commonly claimed justification is that there is a bona fide occupational requirement, meaning a genuine or real occupational requirement, that justifies the discrimination (Bombardier at paras 36-38). If the respondent does not establish a justification, the complaint is substantiated (Bombardier at para 64).
[23] Accordingly, the issues to be determined with respect to Ms. Johnson’s allegation of discrimination in the course of employment are:
1) Has Ms. Johnson established a prima facie case of discrimination? That is,
a. Does Ms. Johnson have a characteristic protected under the CHRA?
b. Did Ms. Johnson experience an adverse impact with respect to employment?
c. Was Ms. Johnson’s protected characteristic a factor in the adverse impact?
2) If Ms. Johnson established a prima facie case of discrimination, did the MFN establish a valid justification for the discriminatory practice and particularly a bona fide occupational requirement?
B. THE EVIDENCE
[24] It is helpful to go through all the evidence relating to Ms. Johnson’s employment and dismissal from the Lanes before addressing whether each of these steps in the analysis has been met.
[25] Ms. Johnson’s evidence was basically two-fold. To begin with, she pointed to the many positive elements in her performance as general manager. She then gave evidence that she alleges shows how the MFN unjustifiably criticized or undermined her work and how the MFN treated Indigenous employees in a more favourable manner than her. She claims this ultimately extended to the MFN’s decision to dismiss her.
[26] In its evidence, the MFN contends that Ms. Johnson had performance issues from the outset of her first probationary period. The MFN maintains that it did not treat her in a differential manner. It was her performance issues that led to her termination. I set out below the areas of Ms. Johnson’s performance that she says were positive and the areas where she believes the MFN treated her adversely in her efforts to manage the Lanes. I then present the MFN’s evidence in response to these claims, namely its concerns about her performance.
(i) Positive elements in Ms. Johnson’s performance [27] Ms. Johnson testified about the numerous achievements in her performance, which demonstrate the passion she had for her work.
[28] Right from the outset of her employment, she knew that she had to equip herself with specific knowledge of the bowling business for the Lanes to be successful. Thus, for instance, the MFN sent her to other bowling operations in Boston, Toronto, and Prince Edward Island to learn about best practices.
[29] Ms. Johnson points out that she was always mindful of the need to keep costs down. For example, when she went to Boston along with two Lanes’ technicians who were going to be trained, she researched all options and found the least expensive means to attend was by driving instead of flying, resulting in significant cost savings for the MFN.
[30] In the months leading up to the Lanes’ opening in November 2018, Ms. Johnson sought out staff that the MFN would need to hire to run the business. Interviews were held in accordance with the MFN’s hiring policies, in October 2018, to select the 60 or so employees that would be needed. One week before opening day, the selected employees were supposed to come in for training. However, only 36 showed up, which would have meant that the operation would be understaffed at the opening. Ms. Johnson needed to have people hired “on the fly,” in her words. She had already arranged for three international university students to be hired. She took the initiative to ask them if they had any friends who would be willing to work. Ten international students showed up and seven were hired. Through this and other initiatives, the Lanes were able to be sufficiently staffed and, ultimately, 68 workers were hired in total.
[31] Ms. Johnson notes that she managed more employees than any of the other MFN operations. She realized that the MFN did not have an adequate scheduling software application to assign workers their shifts. She investigated and acquired a good product for this purpose. Mr. Paul was so impressed with how well the application worked that he asked Ms. Johnson to share it with the managers of the MFN’s other businesses.
[32] The Lanes were extremely popular when they first opened and had some big line-ups of customers who had not reserved lanes. She needed to find a way to manage the situation and, after some quick research, found a software application that staff could use. She took the initiative and purchased a tablet on which the application was loaded to apply the system.
[33] Similarly, there was a high demand for large parties of customers who, in addition to bowling, wanted to be served food. Ms. Johnson had seen an application being used at one of the other bowling alleys she had visited. She acquired the software and had the staff trained to use it.
[34] Ms. Johnson observed during construction that there was no private secure space set aside for staff to count cash, so she spoke to the Lanes’ architect and arranged to have a cash office built just off the bowling desk. She also noticed that if customers walked with their winter boots in the bowling lanes area, the floors could be damaged and the wet floors could pose a danger. As a result, she arranged to install a coat rack across from the bowling desk where customers could leave their boots and outerwear.
[35] Ms. Johnson implemented a recycling plan for the Lanes’ waste management since the MFN did not already have one. She arranged for beverages to be purchased in cans instead of bottles because they are easier to store and return for deposit reimbursement. Ms. Johnson used the reimbursed deposit money to purchase a blender for the staff to make healthy shakes, rather than consume less healthy food and drinks. She also used the reimbursed deposit money to purchase $50 gift cards to be awarded weekly to an employee.
[36] Ms. Johnson arranged for all garbage cans to be removed from the building and replaced solely with recycling bins to discourage waste. No paper was given to customers. A washer/dryer unit was installed to clean wash cloths, eliminating the need to use paper towels. She even used some of the Lanes’ budget to buy staff thermos bottles to encourage them not to use disposable coffee and drink cups. Ms. Johnson claims that she was thus able to minimize the Lanes’ garbage and carbon footprint. Only one regular bag of garbage was generated per week.
[37] The Lanes had 40 display monitors throughout the facility, which needed to be cleaned regularly. Ms. Johnson spoke to a university chemist who recommended an environmentally friendly screen cleaner, which she ordered be used.
[38] Ms. Johnson filed in evidence an email that she sent to Mr. Paul in April 2019 in which she updated him on all her upcoming activities. She referred to the possibility of establishing a take-out menu and of beginning a marketing campaign directed at teenagers. Ms. Johnson mentioned that she was reviewing the Lanes’ financials and developing a plan to cut labour costs. She referred to staff training in the use of the software that had been acquired for the Lanes and her plans to distribute gratuities and tips through payroll.
[39] Ms. Johnson testified about how her mission in her work was also to help others gain fulfilling employment at the Lanes and feel good about themselves. A person that she hired as a lane technician is still working there and is considered a leader among staff. Ms. Johnson had another employee hired who had been struggling in her job at a different MFN operation. The employee thrived at her Lanes’ job. Another person, who was a member of the MFN community, was struggling with substance dependency problems. She hired him, and he thanked her for caring about him.
[40] Ms. Johnson called Shannon MacAuley to testify at the hearing. Ms. MacAuley stated that, after she was hired to work at the Lanes, Ms. Johnson noticed that her CV said she had qualifications in office administration and graphic design. Ms. Johnson was her first employer to recognize these qualifications, and she assigned her work in those areas. Ms. MacAuley testified that she felt there was “something magical” about working at the Lanes with Ms. Johnson. She felt at home, at a place that could offer her a career, adding that Ms. Johnson had “opened up [her] world.”
[41] Ms. Johnson also had John Miller testify. He served for many years with the MFN in many capacities, including as its director of finance. The MFN asked him to assist in the Lanes’ operations in matters relating to his expertise in accounting. As such, Mr. Miller worked closely with Ms. Johnson. In his opinion, she was a good person who was doing an excellent job.
[42] Ms. Johnson submits that all this evidence demonstrates her commitment and passion for her work and that her job performance was above par.
(ii) The MFN’s actions and omissions regarding Ms. Johnson’s management of the Lanes that she alleges show that the MFN treated her adversely as a non-Indigenous person [43] Ms. Johnson alleges that her achievements at her job came about despite the MFN’s actions and omissions regarding the management of the Lanes, which she claims demonstrates that it discriminated against her based on her protected characteristics.
[44] I set out these actions and omissions below but, in some instances, I have also incorporated the evidence advanced by the MFN in response to these claims.
a. The MFN’s failure to respond to Ms. Johnson’s requests [45] To begin with, Ms. Johnson points to numerous instances where the MFN failed to respond to her requests to improve the Lanes’ operations.
[46] For instance, on December 12, 2018, she emailed Mr. Stevens asking him, “Please set me up for a training session on how to do coaching documents and verbal and written warnings, etc.…. in case I need things.” No one ever responded to this email, and she was not given the requested training.
[47] The MFN counters that Article 7.1 of its personnel policy spelled out clearly the steps to be taken on discipline. Managers are to give verbal warnings with an entry in the personnel file for first offences. Managers or directors issue written second warnings. Third offences result in a notice of dismissal after the matter has been discussed with the COO. As general manager, Ms. Johnson should have made herself aware of the policy and known how to follow it. She should not need to be trained on this. The position’s job description said that she had the duty to comply with the MFN’s personnel policy. Ms. Johnson acknowledged that she did not keep a copy of it in her office and did not consult it for staffing issues. Mr. Paul testified that he did not have to go in and explain policies to managers in any of the MFN’s other businesses.
[48] In February 2019, Ms. Johnson emailed Mr. Stevens to tell him about an employee who was short by over $400 in her cash. Ms. Johnson asked Mr. Stevens what steps needed to be taken to dismiss the employee and recover the funds. Instead of dismissing the employee, Mr. Stevens just deducted the missing sum from the employee’s next paycheque and noted it in her personnel file. The employee, who was a member of the MFN, was not dismissed or disciplined.
[49] The MFN points out, however, that Mr. Stevens’ actions complied entirely with the MFN’s personnel policy. Article 3.4 of the policy says that employees are liable for any cash shortage that may occur during working hours, and it is deducted from their wages. Mr. Paul testified that before someone can be dismissed, a proper investigation needs to be conducted with conclusions based on evidence. Eventually, the police may need to be called in to investigate. This is consistent with the personnel policy. The employee quit before an investigation could be held, according to Ms. Johnson.
[50] Also in February 2019, Ms. Johnson emailed Mr. Stevens asking to hire an additional person part time to the position of cash office/bowling operations supervisor to further tighten the Lanes’ cash procedures. She suspected that staff were not processing data correctly. Mr. Stevens and the MFN never addressed her staffing request.
[51] Ms. Johnson filed in evidence a February 2019 email exchange with Mr. Stevens that she claims further shows how senior MFN management was preventing her from doing her job properly. Ms. Johnson explained to Mr. Stevens in the email that she had previously sent a request directly to the Chief and Council to have the salary of an employee who had been promoted to the position of lane technician increased to reflect this reclassification. She testified that she was never formally trained on how to get employees reclassified. Ms. Johnson’s wrote in her email that the request was redirected to several people but did not end up being approved. Yet, when the employee, who is Indigenous and a member of the MFN, personally asked Chief and Council to have her pay reflect the work she was doing, the increase was approved.
[52] However, as the MFN pointed out, the full email exchange provides the rationale for not granting pay increases automatically when job tasks change. Mr. Paul explained to Ms. Johnson in another email that just because work assignments change does not mean that the person has been “promoted.” It is understandable to want to promote and retain workers, but operational costs must always be considered. That is why all promotions and pay increases must be approved first by the COO.
[53] Mr. Paul testified that a salary review committee, comprised of councillors, an HR representative, and him, exists. The committee first assesses and decides every wage raise request and then makes a recommendation to the Council. Ms. Johnson never made a request to the committee. As for promotions, there is a process in place for those types of opportunities to be posted and enable employees to apply for them.
[54] In March 2019, Ms. Johnson emailed Mr. Stevens to advise him that one of the lane technicians would be going on leave for several weeks in May. Ms. Johnson asked him to create an internal job posting to replace the technician while on leave. According to Ms. Johnson, Mr. Stevens made no effort to assist her in getting a replacement.
[55] In April 2019, the funding from an employment assistance program that was paying a very good employee’s salary ended. Ms. Johnson emailed Mr. Paul proposing that the employee be retained. She undertook to review the Lanes’ revenue and expense figures to find a funding source for the continued employment. After initially asking for some additional information, Mr. Paul and the MFN failed to follow up. The employee got a job somewhere else, and the Lanes lost a good worker.
[56] Ms. Johnson sent an email to Mr. Stevens on April 21, 2019, asking if he was available to meet with her and an employee who had missed several shifts and left her job early several times. Mr. Stevens never responded to the email. Ms. Johnson pointed out in her testimony that Mr. Stevens had by this point still not provided her any coaching on how to issue warnings to employees, which she had requested in her December 2018 email to him. This is why she asked him to participate in this meeting.
[57] As mentioned earlier, the MFN maintains that these are issues that fell squarely within a general manager’s responsibilities, and Ms. Johnson should have known how to deal with them herself in accordance with the detailed personnel policy.
b. The MFN’s unwillingness to address concerns about an employee if they are Indigenous [58] Ms. Johnson highlighted in her testimony an incident involving an employee whom I need only refer to as CD (not her real initials). In May 2019, Ms. Johnson and Mr. Miller had gone to a bowling facility in Toronto to observe its cash management operations with that alley’s expert. Part of the exercise involved reviewing the Lanes’ security camera footage and comparing it with the data generated by the Lanes’ point-of-sale terminals. They observed that CD had ordered food and alcohol for customers but did not collect the money. On May 16, 2019, Ms. Johnson emailed Mr. Stevens, with a copy to Mr. Paul, to inform them of this discovery and the need to take action before CD’s next shift. In her examination-in-chief, Ms. Johnson testified that Mr. Paul’s only email response to her was, “Is [CD] native?” AB was copied on Mr. Paul’s email and AB replied to him that CD is not. Ms. Johnson’s testimony was her only evidence for this allegation. She did not produce a copy of this email exchange as she describes it.
[59] However, in cross-examination, the MFN entered into evidence an email chain of 20 messages, with the subject heading “Evidence of Theft.” The chain begins with what appears to be Ms. Johnson’s initial email to Mr. Paul of Thursday, May 16, 2019, at 2:48 p.m. Contrary to Ms. Johnson’s testimony, Mr. Paul’s first response 22 minutes later simply asks her to send him the evidence, adding that an investigation must be started immediately and that CD’s access to additional cash must be prevented. A series of other emails follow that day between Ms. Johnson and Mr. Paul, in which she shared some more details about her observations. AB was also copied on the exchange since she was acting manager while Ms. Johnson was away.
[60] The email chain continued the following day, Friday, May 17, 2019. At 6:59 a.m.; AB wrote to Ms. Johnson and Mr. Paul asking what instructions they had for her. Mr. Paul responded with a short email at 9:42 a.m. asking, “Is [CD] a band member or a community member?” AB responded five minutes later, “No she is not.” The email chain then continues for another eight exchanges between Ms. Johnson, Mr. Paul, Mr. Stevens, and AB, in which strategies and options are discussed for dealing with CD. The email chain ends on Saturday, May 18, 2019, at 5:13 p.m.
[61] Ms. Johnson maintains that there was an earlier email from Mr. Paul with the Indigenous reference, since she recalls having turned to Mr. Miller immediately after receiving it and remarking to him, “Can you believe it?” That conversation could only have occurred on Thursday, May 16, 2019, because Mr. Miller had left Toronto by Friday, May 17, 2019, and she did not speak to him that day. I note, however, that Mr. Miller did not mention anything about this conversation in his testimony, and Ms. Johnson did not ask him any questions about it. She later stated that Mr. Miller would not have been able to recall it anyway since it occurred four years earlier. Nevertheless, the question was never put to him at the hearing.
[62] Taking all the evidence into account, I am not persuaded on the balance of probabilities that Mr. Paul made the comment in the manner alleged by Ms. Johnson. The documentary evidence simply does not support it. Ms. Johnson asserted that the MFN had withheld portions or doctored the emails, but there is no evidence to support this allegation. The MFN and its legal counsel affirmed unequivocally that they had disclosed the entire email exchange, and Ms. Johnson did not produce any emails to counter this statement.
[63] This is not to say that something akin to what Ms. Johnson recalls did not occur. Mr. Paul clearly asked if the employee was an MFN member. He explained in his evidence the significance of his question. If the employee was a member, Mr. Paul would need to give the Chief and Council a heads-up, since members have a right to bring their complaints and grievances directly to them. Mr. Paul pointed out that not all MFN members are Indigenous. Some are members through marriage. The question about whether CD was a member was not intended to suggest that any preferential treatment be given to CD.
[64] I appreciate Ms. Johnson’s recollection that the conversation had to have occurred on the Thursday, but nothing else supports her claim. Mr. Miller was not asked to confirm it, and I also note that Ms. Johnson’s recollection in her evidence-in-chief, before the email chain was presented to her in cross-examination, was that only three emails were exchanged between her, AB, and Mr. Paul. The documentary evidence clearly shows that there was a much longer exchange, which extended over two days.
[65] It has therefore not been proven that Mr. Paul made the alleged comment.
c. The MFN’s failure to provide Ms. Johnson a coaching document [66] In Ms. Johnson’s performance appraisal report, which Mr. Paul prepared at the end of her initial probation period in February 2019, he commented that her probation was being extended for three months and that he and Mr. Stevens would be helping her “by providing a coaching document with follow-up.”
[67] The coaching document was never in fact provided to Ms. Johnson before she was terminated in May 2019. Ms. Johnson suggested at the hearing that even if no coaching document was prepared, the MFN should at least have provided her with an action plan for the Lanes. Mr. Paul testified that he would have expected her to develop the action plan for him to approve. Mr. Stevens, in cross-examination, appeared to contradict this statement, saying that he understood it was up to an employee’s direct manager to draft an action plan. I note, however, that a close review of the testimonies shows that the questioning may have been unclear as to what was being referred to—whether “coaching” and “action plans” were understood to be synonymous or not. I therefore hesitate to make any finding of contradiction on this point.
d. Post-dismissal evidence [68] Ms. Johnson submits that the MFN’s conduct after she was dismissed in May 2019 supports her allegations of discrimination. Ms. MacAuley testified that, after the termination, AB told her not to speak to Ms. Johnson, warning her that doing so would affect her employment. The remark made Ms. MacAuley nervous, but she ultimately shrugged it off. She did not perceive it as a threat. She has maintained her friendship with Ms. Johnson despite what she described as AB’s “inappropriate” comment. Ms. MacAuley testified that no one else made any similar comment to her.
[69] Ms. Johnson claims that other employees were similarly told not to speak to her after receiving Mr. Paul’s written message to staff announcing that Ms. Johnson would no longer be general manager. However, those other employees were not called to testify, and Ms. Johnson’s evidence is thus hearsay. Although the Tribunal may receive and accept hearsay evidence, I do not find it appropriate to assign any weight to these otherwise uncorroborated hearsay statements.
[70] Ms. Johnson also points to how her appeal of the dismissal was dealt with as further evidence of discriminatory treatment. Mr. Stevens’ termination letter of May 24, 2019, stated that as per the personnel policy, she could appeal the dismissal to the Chief and Council in writing within 15 days. She sent her appeal letter on June 1, 2019. Yet, she never received any response.
[71] Mr. Paul confirmed in his testimony this type of appeal letter is normally vetted by the Chief as CEO to determine if the matter warrants bringing to a meeting of Chief and Council or whether the matter will be dealt with outside of Council. Mr. Paul was unable to explain in his testimony what happened to Ms. Johnson’s appeal.
[72] Ms. Johnson also claims that if she were an MFN member, she could have complained about her situation to the Chief and Council. Mr. Paul testified that members of the MFN have a right as members to contact their councillor to complain about any concern they may have on any topic and to ask that their issue be raised at a meeting of the Chief and Council.
e. The MFN’s preferential treatment of AB and the lead-up to Ms. Johnson’s termination [73] As alleged in Ms. Johnson’s complaint, the MFN hired three managers to oversee the Lanes’ operations prior to their opening—a food and beverage manager (who left for personal reasons in February 2019), AB (who was the customer relations and events supervisor), and Ms. Johnson (who was the general manager). The job description for AB’s position involved working with customers to arrange parties and events and proactively reaching out to attract new customers. This required providing customers with “outstanding service through friendly, quick, efficient, accurate and safe assistance.”
[74] Ms. Johnson alleges that she faced numerous incidents of incompetence, insubordination, and absenteeism with AB. Yet, the MFN did not support Ms. Johnson in disciplining AB and later insisted on promoting her to the assistant manager position, with which Ms. Johnson could not in good conscience agree. Instead, Ms. Johnson believed that AB should have been dismissed in accordance with the MFN’s policy.
[75] How the MFN dealt with AB is key to Ms. Johnson’s case since it was right after an exchange of emails with Mr. Paul and Mr. Stevens over AB’s role that Ms. Johnson’s employment was terminated.
[76] Ms. Johnson testified that her concerns about AB had emerged before the Lanes opened for business. On November 9, 2018, Ms. Johnson met with Mr. Paul to discuss them. She told him about a cardiopulmonary resuscitation machine that had been purchased for the Lanes. A rebate program for reimbursement of its cost was available, and Ms. Johnson asked AB to apply for it in August 2018. She learned several months later that the paperwork had not been filed.
[77] Ms. Johnson also explained that another Nova Scotia bowling facility had emailed her saying that it had been trying to contact AB repeatedly to arrange a visit of the Lanes, but AB had not responded. AB’s voicemail was full, and she did answer its text messages.
[78] Customers had begun to book their Christmas parties. A large corporate client wanted to reserve the facility, but its calls to AB had gone unanswered, so the client called Ms. Johnson directly.
[79] Ms. Johnson also told Mr. Paul about an incident involving the seven international students who were hired at the last minute before the Lanes’ opening. Paperwork had been filled out for their employment, and AB was tasked with getting it to the MFN payroll office. One month later, the payroll office contacted Ms. Johnson asking for the students’ paperwork. The package had somehow never made it to the office.
[80] Having raised all these concerns with Mr. Paul, Ms. Johnson asked him what his plan of action was. He did not impose any disciplinary measures on AB and only confirmed to Ms. Johnson that AB had some similar performance issues at another MFN business where she used to work.
[81] In January 2019, another issue developed involving AB. Several employees reported to Ms. Johnson that AB had been drinking alcohol at the Lanes without paying. She was also instructing staff, in her capacity as supervisor, to turn on lanes for people who had not paid. Ms. Johnson raised the problem with Mr. Paul and Mr. Stevens. She testified that nothing was done, and she was not given any direction on the next steps to be taken.
[82] Another incident involving AB occurred on the day of the Super Bowl in February 201